JUDGMENT
L. Narasimha Reddy, J.
1. In this appeal, the defendant in OS. No. 278 of 1986 on the file of the I Additional Subordinate Judge, Visakhapatnam, challenges the preliminary decree dated 29.10.1992 passed by the Trial Court.
2. The respondent/plaintiff filed the suit for partition against the appellant/ defendant. It was the case of the respondent that his father late K. Somulu purchased 78 sq. yards of land through sale deed dated 29.8.1934 in the name of his mother-in-law by name Chintalamma. He also purchased another extent of 61 sq. yards through sale deed dated 5.7.1949 in the name of his 2nd wife Pydamma, who is the mother of the appellant. In addition to these two items of properties, he got about 200 sq. yards of land in between the said items of properties through oral gift from Bhamidipati people. The substance of the pleadings of the respondent was that 61 sq. yards of land purchased under sale deed dated 5.7.1949 is the exclusive property of Pydamma, the mother of the appellant, the respondent and the appellant are entitled to half share each in 78 sq. yards of land purchased in the name of Chintalamma and the respondent alone is entitled for 200 sq. yards of land which is said to be belonging to late Somulu exclusively. On the basis of these pleadings, he prayed for a decree to the effect that the 3 items of properties be divided in such a way that the appellant is given 100 sq. yards comprising 61 sq. yards purchased in the name of Pydamma and half of 78 sq. yards purchased in the name of Chintalamma and the remaining property of 239 sq. yards be treated as his share.
3. The appellant filed written statement disputing the claim of the respondent. According to her, Pydamma was the 2nd wife of late Somulu, 200 sq. yards of land is part of the two items of properties covered by sale deeds in the name of Chintalamma and Pydamma, the respondent has no exclusive right or claim in respect of 200 sq. yards of land referred to above.
4. On the basis of the pleadings, the Trial Court framed only one issue as to the entitlement of the respondent for the relief prayed for and ultimately decreed the suit through its judgment and decree dated 29.10.1992.
5. Mr. G. Ram Gopal, the learned Counsel for the appellant submits that the controversy is only as to 200 sq. yards of land, which the respondent claimed that he alone is entitled for it. According to him, such a claim is without basis. He states that it is not shown as to how the said 200 sq. yards of land was acquired by late Somulu. According to him, the mother of the appellant and the mother of the respondent are sisters and both of them were wives of late Somulu and, as such, they are entitled for equal rights in respect of 200 sq. yards of land.
6. Mr. P. Satyanarayana, learned Counsel for the respondent, on the other hand, submits that it was late Somulu who acquired the property of 200 sq. yards with his own efforts and the respondent being the only son of the legally wedded wife of late Somulu, was entitled for the same. He disputed the status of the appellant.
7. The only question that needs to be decided in this appeal is whether the appellant is entitled for a share in 200 sq. yards of land said to have been acquired by late Somulu.
8. The respondent did not put forward any claim as regards 61 sq. yards of land purchased under Ex. B-23. In a way, the same has to be treated as outside the scope of adjudication of this appeal. So far as 78 sq. yards of land covered by sale deed dated 29.8.1934 is concerned, respondent had fairly admitted that the appellant is entitled for half share in it. He makes an exclusive claim in respect of 200 sq. yards of land only.
9. The manner and method in which the 200 sq. yards of land came to be acquired by late Somulu is not much of relevance. The respondent also does not claim that to be his exclusive property. On the other hand, he claims the same through Mr. Somulu, his father. The respondent, however, disputes the status of the appellant vis-a-vis Somulu and calls her as the illegitimate child of late Somulu.
10. In this context, it is relevant to refer to the pleadings in O.S. No. 375/ 1979, which was filed by the respondent, his wife, and mother seeking injunction against the appellant herein. In that suit, the description of the parties were as under:
“Somulu and defendants 2 to 7 are the children of the 1st defendant. The plaintiff’s father-in-law late Kostu Somulu had two wives, Kostu Appayyamma and Kostu Pydamma, who were also sisters and daughters of late Tekupudi Chinthalamma. The plaintiff’s husband Kostu Appa Rao is the one of late K. Somulu, through his first wife Kostu Appayyamma, the 1st defendant is the daughter of Kostu Somulu, through his 2nd wife.”
An attempt was made in the present suit to brand the mother of the appellant herein as kept mistress of late Somulu. From the pleadings in O.S. No. 375/1979 filed by the respondent herein, his wife and mother, it is evident that the mother of the appellant was also the 2nd wife of late Somulu. Even if the validity of the 2nd marriage of Somulu is to be doubted, in any manner, the right of the appellant to claim share in the properties held by her father cannot be doubted in view of Section 16(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’).
11. The learned Counsel for the respondent submits that since the amendment to the Act is of the year 1976, the benefit under that provision is not available to the appellant since she was born much prior to 1976 and the marriage also took place long before. A reading of Section 16(1) indicates that the status of legitimacy gets attached to the child even if the marriage out of which the child is born is declared as void or voidable and whether such birth is before or after the date of amendment.
12. The learned Counsel for the appellant relies upon the judgment of the Hon’ble Supreme Court in Gurnam Kaur v. Puran Singh, and G. Nirmalamma v. G.T. Sitapathy, . In both the judgments, the purport of Section 16(1) of the Act was considered and it was held that the children born out of a marriage which is void or voidable, shall have the right to inherit the property of the father.
13. Mr. Satyanarayana, the learned Counsel for the respondent submits that the relationship between late Somulu and Pydamma cannot be said to be out of a valid marriage. According to him, the father of the respondent married his mother Appayyamma and any marriage between Somulu and Pydamma, the mother of the appellant, during the life-time of Appayyamma was void. On the basis of this, he submits that on the death of K. Somulu, the property devolved upon the mother of the respondent Appayyamma and the respondent and even if the appellant is treated to be the legitimate child, she will be entitled to l/3rd out of 200 sq. yards of land and not half.
14. The submission of the learned Counsel for the respondent deserves to be accepted if the marriage between Somulu and the mother of the appellant Pydamma is held to be void. It is not in dispute that both the marriages with Somulu took place prior to 1955. It has to be seen whether the marriage of Somulu with Pydamma that took place before 1955 can be treated as void. The learned Counsel for the appellant (sic. respondent) placed reliance upon the judgment of the Hon’ble Supreme Court in P.E.K. Kalliani Amma v. K. Devi, , and submits that even if the marriage took place prior to 1955, the 2nd marriage contracted by a Hindu male during the subsistence of first marriage is void and the 2nd wife is not entitled for any share.
15. In Kalliani Amma’s case (supra), the Supreme Court was dealing with a case where a Hindu male contracted the 2nd marriage during the subsistence of the 1st marriage before 1955. The question as to whether Hindu Law prohibited the 2nd marriage by a Hindu male prior to the commencement of the Act was dealt with in K. Bhaurao v. State of Maharashtra, , and it was observed that:
“Apart from these considerations, there is nothing in Hindu Law, as applicable to marriage till the enactment of Hindu Marriage Act, 1955, which made a 2nd marriage of a male Hindu, during the life-time of his pervious wife, void.”
In its judgment, the Hon’ble Supreme Court examined as to whether there was any law which prohibited the 2nd marriage prior to Hindu Marriage Act, 1955 in the State of Kerala. After referring to Madras Marumukattayam Act, 1932 (XXII of 1933)/ the Supreme Court arrived at the conclusion that there did exist a provision prohibiting such marriage. It was in that context that the 2nd marriage contracted by the male Hindu prior to 1955 in that case was held to be valid (sic. void). The relevant portion reads as under :
“22. Manimakkattayam law was modified and altered by Madras Manimakkattayam Act, 1932 (22 of 1933). This Act was in force when Raman Nair married his first wife, Ammu Amma, in 1938. Section 5 of the Act provides as under :
‘5(1) During the continuance of a prior marriage which is valid under Section 4, any marriage contracted by either of the parties thereto on or after the date on which this Act comes into force shall be void.
(2) On or after the said date, any marriage contracted by a male with a Marumakkattayi female, during the continuance of a prior marriage of such male, shall be void, notwithstanding that his personal law permits of polygamy.’
It thus contained a specific prohibition that during the continuance of a prior marriage, any marriage contracted by either of the parties thereto shall be void.”
Such a provision did not exist in the State of Andhra Pradesh. At any rate, there was no pleading in the plaint touching on this aspect. Therefore, if after the death of Kosta Somulu, Appayyamma, the mother of the respondent, was entitled to a share, equally Pydamma, the mother of the appellant was also entitled for the same. Viewed from any angle, the appellant and the respondent are entitled for equal shares in the 200 sq. yards of land left by late Kosta Somulu.
16. In view of the discussion undertaken above, the appeal is allowed and the decree of the Trial Court is modified to the extent that the appellant/defendant and the respondent/plaintiff are entitled to equal shares in the 200 sq. yards of land with Assessment No. 28727. In all other respects, the decree shall hold good. There shall be no order as to costs.